March 27 2014

The Meaning of Religious Freedom

Rachel DiCarlo Currie

You don’t have to be a woman, a believer, or a business owner to care deeply about the outcome of the Hobby Lobby case now being considered by the U.S. Supreme Court. At stake is nothing less than the meaning of religious freedom in contemporary America.

In two cases before the Supreme Court, the plaintiffs, who run an Oklahoma-based arts-and-crafts chain (Hobby Lobby) and a Pennsylvania-based cabinet maker (Conestoga Wood), are challenging the Obama administration’s authority to make them offer their employees contraception benefits, arguing that provision of the mandated benefits -- which include coverage for drugs that the plaintiffs deem abortifacients -- would violate their Christian faith, and thus their conscience rights. They’re seeking an exemption under the 1993 Religious Freedom Restoration Act (RFRA), which says that government is not allowed to “substantially burden a person’s exercise of religion” unless the application of that burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Supreme Court justices heard oral arguments on Tuesday, and are expected to deliver their ruling in June. The decision will hinge on several questions.

First: Are private corporations entitled to RFRA protections? On this question, writes Carrie Severino of the Judicial Crisis Network, Justice Samuel Alito elicited a major concession from Solicitor General Donald Verrilli, who was arguing the administration’s case:

[Justice Alito] prompted the solicitor general to concede that RFRA applied to nonprofit corporations -- meaning nothing inherent in the corporate form made the law inapplicable -- as well as to for-profit businesses if they’re organized as sole proprietorships or partnerships. Thus, Verrilli conceded, nothing about entering the marketplace itself puts one outside the bounds of RFRA. Even Justice Breyer agreed with the challengers on this point, and questioned the solicitor general as to why a kosher butcher should suddenly lose its free-exercise claim once incorporated.

Next question: Does the contraception mandate “substantially burden” the plaintiffs? Here’s Severino:



The mandate either forces them to pay a penalty for offering insurance that doesn’t include certain contraceptives, or decline to provide insurance at all and pay a substantially smaller, though still significant, tax. Justices Sotomayor and Kagan argued vigorously that there was no real harm to the businesses because, by dropping insurance, the companies could actually save money. The Chief Justice, Justice Scalia, and Justice Alito all disagreed, arguing that the companies would have to pay higher wages in order to compensate their employees for the loss of health care. This was one point at which Justice Kennedy showed sympathy toward the government, and asked hypothetically what was left of the religious objectors’ cases if dropping insurance turned out to be a wash financially. Clement [that would be Paul Clement, attorney for the plaintiffs] responded that the companies felt a religious duty to offer health insurance to their employees, and pointed out that previous cases had found a fine of as little as $5 to be substantial. Thus, even if the cost of providing no insurance at all turns out to be less than the estimated $26 million and doesn’t force Hobby Lobby out of business, it still burdens their religious practice.
 

Third and fourth questions: Does the government have a compelling interest in broadening access to contraception? If so, does the Obamacare mandate represent “the least restrictive means of furthering” it?

Even if your answer to the compelling-interest question is “yes,” it is very difficult to argue that forcing private corporations to provide coverage for contraceptive drugs is “the least restrictive means” of promoting that interest. Writing in the Wall Street Journal, scholars Robert George (a Catholic) of Princeton and Hamza Yusuf (a Muslim) of Zaytuna College observe that there are “many ways for the government to distribute these drugs -- on its own exchanges, through the Title X family-planning program and by cooperating with willing distributors -- that do not require the forced participation of conscientious objectors.”

Two well-known legal thinkers -- one a famous liberal, the other a famous conservative -- who find themselves on the same side of the Hobby Lobby case, are Harvard law professor Alan Dershowitz and Baylor University president Ken Starr. During a March 24 event at Washington’s Willard Hotel, reports syndicated columnist Kathleen Parker, Dershowitz and Starr “affirmed at least two points of agreement: (1) separation of church and state is good for religion; (2) corporations are people and people are corporations (echo Mitt Romney?) and, therefore, Hobby Lobby should be permitted an exemption from the contraceptive mandate imposed by the Affordable Care Act (ACA).”

A final word about the Religious Freedom Restoration Act: We should recall that it garnered the support of 97 senators, and passed the House of Representatives by voice vote, before being signed into law by President Clinton. At a 1992 Senate Judiciary Committee hearing, the late Ted Kennedy, a prominent advocate of the RFRA, noted that it was “strongly supported by an extraordinary coalition of or­ganizations with widely differing views on many other issues. The National Association of Evangelicals, the American Civil Liberties Union, the Coalitions for America, People for the American Way, just to name a few, support the legislation.”

If the Obamacare contraception mandate is ruled a violation of the RFRA -- as it should be -- the law will have served its original purpose.

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